إشكالات صيغ العقود التي تؤول إلي ربا في الفقه الإسلامي والقانون الوضعي : دراسة مقارنة

Abstract

This study discusses the problems of contracts wordings and formulation which may be interpreted as usury from the Islamic jurisprudence point of view and the positive law as a comparative study. The study aims at clarifying the problems implied in the contract formulation which may render it null and void. Furthermore, it aims at providing those people who are engaged in the law professions with the legal rules to help them giving each contract the correct juristic and lawful connotation so that the appropriate juristic provisions could be specified and hence applied to any case brought to a court for judgment. One of the reasons for choosing the theme of this study is to illustrate the rules related to usury transactions, in general, and spreading enlightenment among the contracting parties, in particular. The problem of the study is represented in the formulation of the contract when acceptance is linked with confirmation implying contracting on usury or a provision could be interpreted as usury which may make the contract void or voidable and consequently take the properties of others unlawfully, as well as, instability of transactions between individuals and communities. The study adopted the empirical, descriptive analytical and comparative historical methods. It used the sources and references related to the theme of the study. At the end of the research there is a conclusion which includes some findings and recommendations. The study concluded that the Islamic system has the supreme priority and initiative in prohibiting usury as set forth in Allah the Almighty saying: (Allah has permitted trade and forbidden usury…) verse No. 275, Albagara (Cow) chapter. Though, the rule controlling the prohibition of usury in the Islamic jurisprudence is as follows: "any contract implies unjust obligations between its parties shall be considered void or voidable".